Mthimunye and Others v Nyembe and Others (25351/2008) [2009] ZAGPPHC 75 (26 May 2009)

Mthimunye and Others v Nyembe and Others (25351/2008) [2009] ZAGPPHC 75 (26 May 2009)

The court found that the applicants failed to establish a cause of action against the second respondent, as there was no evidence that the second respondent had knowledge that the first respondent was not entitled to sell the property or that she was not the owner. The second respondent was a bona fide purchaser, and the mere fact that the property may have belonged to the applicants' family did not suffice to invalidate the transfer in the absence of such knowledge. The municipality was sufficiently notified of the proceedings and chose not to respond, satisfying the requirements for joinder. The application was not dismissed outright, but no order was made on the substantive prayers,...

Citation
[2009] ZAGPPHC 75
Parties
Applicant: Felani Richard Mthimunye; Applicant: Samuel Mthimunye; Applicant: Anna Mahlangu (born Mthimunye); Respondent: Sibongile Elle Nyembe; Respondent: Mantoa Francina Rantsho; Respondent: Deeds Registry Office
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 May 2009
Case Number
25351/2008
Procedural Posture
Civil Application / Judgment After Hearing
Outcome
No order was made on the substantive prayers. The applicants were ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved.
Judges
M F Legodi
Legal Topics
Transfer of Immovable Property, Bona Fide Purchaser, Non Joinder, Family Property Rights
Land and Property Civil Procedure Transfer of Immovable Property Bona Fide Purchaser Non Joinder Family Property Rights

Case Brief

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Parties

Felani Richard Mthimunye

Applicant

Samuel Mthimunye

Applicant

Anna Mahlangu (born Mthimunye)

Applicant

Sibongile Elle Nyembe

Respondent

Mantoa Francina Rantsho

Respondent

Deeds Registry Office

Respondent

Procedural Posture

Civil Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the registration of the immovable property in the first respondent's name is invalid and void.
  2. 2 Whether the sale of the immovable property by the first respondent to the second respondent is invalid.
  3. 3 Whether the property should be re-registered in the applicants' names.

Ratio Decidendi

The court found that the applicants failed to establish a cause of action against the second respondent, as there was no evidence that the second respondent had knowledge that the first respondent was not entitled to sell the property or that she was not the owner. The second respondent was a bona fide purchaser, and the mere fact that the property may have belonged to the applicants' family did not suffice to invalidate the transfer in the absence of such knowledge. The municipality was sufficiently notified of the proceedings and chose not to respond, satisfying the requirements for joinder. The application was not dismissed outright, but no order was made on the substantive prayers,...

Court Disposition

No order was made on the substantive prayers. The applicants were ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved.

Orders

  • No order is made in regard to prayers 1 to 3 of the applicants' notice of motion.
  • The applicants are ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved.